Opinion
1995-04865.
December 22, 2003.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Jones, J.), rendered April 20, 1995, convicting him of rape in the first degree (two counts), sexual abuse in the first degree (two counts), burglary in the first degree (two counts), robbery in the first degree (two counts), unauthorized use of a motor vehicle in the first degree, and unauthorized use of a motor vehicle in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress identification testimony.
Warren S. Landau, Cedarhurst, N.Y., for appellant, and appellant pro se.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Kerry Bassett and Marcia R. Kucera of counsel; Shauna LoNigro on the brief), for respondent.
Before: BARRY A. COZIER and REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
The defendant's contentions that the hearing court improperly denied that branch of his motion which was to suppress identification testimony and his motion to dismiss the indictment are partially unpreserved for appellate review ( see CPL 470.05). In any event, those motions were properly denied ( see People v. Dolan, ___ A.D.3d ___ decided herewith).
The defendant's contention that the evidence was legally insufficient to sustain his conviction is partially unpreserved for appellate review. In any event, viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. The evidence of the defendant's identity as the perpetrator of the subject rapes, burglaries, and robberies, which included extensive DNA evidence and testimony placing him near the scenes of the crimes around the times they were committed, although circumstantial and lacking in any positive identification by the victims, established a prima facie case as to identity ( see e.g. People v. Bush, 266 A.D.2d 642; People v. Fuentes, 290 A.D.2d 563). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see CPL 470.15).
The defendant's contention that he was denied the right to testify is without merit. A trial court does not have a general obligation to sua sponte ascertain if the defendant's failure to testify was a voluntary and intelligent waiver of his right ( see Brown v. Artuz, 124 F.3d 73, cert denied 522 U.S. 1128; United States v. Pennycooke, 65 F.3d 9; United States v. Teague, 953 F.2d 1525, cert denied 506 U.S. 842; United States v. Edwards, 897 F.2d 445, cert denied 498 U.S. 1000; Ortega v. O'Leary, 843 F.2d 258, cert denied 488 U.S. 841; Siciliano v. Vose, 834 F.2d 29; United States v. Bernloehr, 833 F.2d 749; United States v. Janoe, 720 F.2d 1156, cert denied 465 U.S. 1036). Nor was there any exceptional circumstance present which would have mandated the trial court inquiring into the voluntariness of the defendant's failure to testify ( see Brown v. Artuz, supra at 79, n 2; United States v. Joelson, 7 F.3d 174, 178, cert denied 510 U.S. 1019). The defendant never expressly stated that he wanted to testify during the trial. Therefore, it was not irrational that the defendant did not testify. Further, although the defendant indicated in a pretrial pro se motion for the appointment of new counsel that one of the problems with his then-attorney was that he would not allow him to testify, the defendant merely indicated that he wished to testify "if necessary." Accordingly, it was reasonable for the court to believe that any dispute about whether or not the defendant should testify was resolved between counsel and the defendant before the trial started.
The defendant's contention that he was denied his right to effective assistance of counsel is without merit. "Here, the record demonstrates that the defense counsel effectively cross-examined the People's witnesses, delivered a cogent opening and closing statement, and presented a plausible defense" ( People v. Groonell, 256 A.D.2d 356, 357). Thus, the defendant was provided with meaningful representation ( see People v. Baldi, 54 N.Y.2d 137).
The judgment appealed from relates to the defendant's conviction of charges for which he was previously tried. According to the defendant, his second trial violated the prohibition against double jeopardy. However, this claim has no merit because the second trial was conducted after the jury in the prior trial was deadlocked and a mistrial on that ground was granted with the defense counsel's consent ( see People v. Scarbrough, 254 A.D.2d 824; People v. Holland, 248 A.D.2d 636).
The defendant's remaining contentions, including those raised in his supplemental pro se brief, either are not preserved for appellate review, without merit, or constitute harmless error in view of the overwhelming evidence of guilt ( see People v. Crimmins, 36 N.Y.2d 230, 241-242).
KRAUSMAN, J.P., McGINITY, COZIER and RIVERA, JJ., concur.